OpenJurist

874 F2d 817 United States v. Lee

874 F.2d 817

Unpublished Disposition

NOTICE: Ninth Circuit Rule 36-3 provides that dispositions other than opinions or orders designated for publication are not precedential and should not be cited except when relevant under the doctrines of law of the case, res judicata, or collateral estoppel.

UNITED STATES of America, Plaintiff-Appellee,
v.
Yick Ping LEE, Defendant-Appellant.

No. 88-3109.

United States Court of Appeals, Ninth Circuit.

Submitted* April 27, 1989.
Decided May 1, 1989.

Before HUG, SCHROEDER and LEAVY, Circuit Judges.

1

MEMORANDUM**

2

Yick Ping Lee challenges his convictions for conspiracy to import heroin, importation of heroin, and possession with intent to distribute heroin. He contends that the district court erred in failing to suppress his post-arrest statements, as well a witness who was the fruit of those statements. We disagree and affirm.

3

On September 24, 1987, Special Agent Modesitt of the Drug enforcement Administration (DEA) received a tip from the Hong Kong Police that a man and a woman would be flying to the United States from Hong Kong and that they would be carrying heroin. The Hong Kong police gave Modesitt the names, passport numbers, and flight information of the individuals. They also told him that one suspect, Lee, had previously spoken with them concerning persons who had tried to recruit him to carry heroin to the United States. When he failed to contact the Hong Kong police again, the police placed him on a watch list. Modesitt apprised immigration authorities, as well as other customs agents of this information.

4

When Lee disembarked from the plane, he and his female companion, Chung, were referred to secondary inspection because they lacked U.S. visas. There, Immigration and Naturalization Service (INS) Inspector Grimes conducted a pat-down search of Lee. The pat-down aroused agents' suspicions and they accordingly raised Lee's shirt revealing plastic wrapped packages around his ribs that contained a white substance. The INS agents then opened the door and informed Modesitt that Lee had approximately 30 packages wrapped around his waist and on his thighs. Similar packages were found on Ms. Chung.

5

Because Mr. Lee spoke only Cantonese, a Chinese dialect, INS agents attempted to find an interpreter. Agents first found Lisa Yee. She had a conversation with Lee in Cantonese and told Modesitt that she had advised Lee of his rights. Shortly thereafter, however, Yee told Modesitt she was having trouble understanding Lee and Modesitt promptly terminated the interview. Yee admitted that she did not provide Lee with full Miranda warnings.

6

Yee obtained a second interpreter, May Chee. Chee testified that she translated the Miranda warnings into Chinese for Lee and that he told her that he understood. She further testified that he indicated that he was willing to cooperate with police. Specifically, Lee asked Chee whether the agents would reduce his sentence if he cooperated with them. Chee stated that she told Lee that the agents would make things easier for him if he cooperated. Again, however, Modesitt apparently learned that the warnings had been inadequate and he terminated the interview.

7

Ultimately, the agents obtained a third interpreter, Jennie Ansdell who was fluent in Cantonese. She testified that she thoroughly advised Lee of his rights and that he indicated that he understood those rights. Lee further indicated that he was willing to talk if the agents would reduce his sentence. Ansdell then translated Modisitt's and Jensen's responses--that they could not promise anything but that he would inform the court of any cooperation. Lee indicated he wanted to cooperate and was then questioned through Ansdell.

8

Ansdell finally testified that when she finished interpreting for Lee and Jensen she walked outside the interrogation room with him. There, she saw a woman who she identified as Yin Ha Chung, Lee's companion on the plane. She stated that Lee shouted to Chung "I told them we only met once before. You say the same."

9

Lee contends that his statements to Ms. Ansdell should have been suppressed because the Miranda warnings given by Ms. Yee and Ms. Chee were defective. He essentially asserts that the statements he made to Chee and Yee tainted his later statements to Ansdell. We reject this contention.

10

The fifth amendment requires the suppression of statements made during custodial interrogation unless the defendant has properly been apprised of his rights under Miranda v. Arizona, 384 U.S. 436 (1966). See Elstad v. Oregon, 470 U.S. 298, 305-07 (1985); United States v. Wauneka, 770 F.2d 1434, 1440 (9th Cir.1985). However, a procedural Miranda violation, i.e., a failure to administer correct warnings, does not require suppression of a subsequent voluntary confession. Elstad, 470 U.S. at 309. Rather, in that situation a subsequent confession should be suppressed only if it is involuntarily made. Id.; Wauneka, 770 F.2d at 1440.

11

Here, the district court properly excluded Lee's statements made prior to the time he was given correct Miranda warnings by Ansdell. Lee does not assert that the final Miranda warnings provided by Ms. Ansdell were incorrect. Rather, he asserts merely that because his first statements were obtained in technical violation of Miranda, his later statements to Ansdell must be excluded.

12

Lee is simply wrong. The first two sets of statements were not involuntary and thus were not taken in violation of the fifth amendment. The only violation that occurred was a technical one. See United States v. Wauneka, 842 F.2d 1083, 1088 (9th Cir.1988). In Wauneka, police provided the defendant with an inadequate waiver form, which he signed. Later, valid written and oral warnings were given. However, Wauneka failed to show that any of the statements were involuntarily given and accordingly, Wauneka's subsequent confession was admissible. See id.

13

Similarly, here, improper warnings were given, followed by correct ones. Lee failed to present any evidence that any of his statements were involuntary or obtained through promises or coercion. See Wauneka, 842 F.2d at 1088. Thus, the district court did not clearly err in admitting Lee's statements.1

14

AFFIRMED.

*

The panel unanimously finds this case suitable for disposition without oral argument. Fed.R.App.P. 34(a); 9th Cir.R. 34-4

**

This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by 9th Cir.R. 36-3

1

Because we find that Lee's post-arrest statements were properly admitted, we need not address the issue whether the testimony of witness Chan, allegedly a fruit of Lee's post-arrest statements, was admissible